Copyright Reform Act tries fixing fair use with seven words

Public Knowledge believes that US fair use law could get a lot better with the …

Current fair use law is hazy by design; instead of laying out specific use cases, the law relies on the famous "four factors" about the purpose of the use, the nature of the copyrighted work, the amount borrowed, and the effect on the value of the original work. This can be maddening in many situations, because it is impossible to know in advance if a particular use qualifies. On the other hand, it gives a fair use incredible flexibility to adapt to new circumstances like the advent of the VCR.

But in the paragraph that comes just before the four factors, Congress did see fit to lay down a nonexclusive list of fair uses: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Is it time for more list items? The new Copyright Reform Act, proposed by Public Knowledge, would make a deceptively simple change to bring fair use into the 21st century—add seven words to this list.

Seven dirty words?

The CRA is a new project from Public Knowledge, with much of the heavy lifting being done by the Cyberlaw Clinic at Stanford and the Technology & Public Policy Clinic at UC-Berkeley. While Berkeley's noted copyright scholar Pam Samuelson works up a new "model statute" for copyright law in the digital age, Public Knowledge hopes to make smaller interim fixes to copyright law that won't require the same dramatic reworking.

This week, it released the first of these reform ideas (PDF) focusing on the principle of fair use. In addition to "criticism" and "news reporting" and the rest of the items in the fair use preamble, the CRA proposes the addition of three more: "incidental uses, non-consumptive uses, and personal, non-commercial uses." They might sound minor, but these suggestions are bound to provoke controversy.

Incidental uses "involve capturing copyrighted works, where the copyrighted work is not the primary focus of the use—for example, capturing music playing over radio when filming a family moment." Incidental use is hugely important to documentary filmmakers, for instance, who routinely capture copyrighted photographs hanging on walls or copyrighted shows playing on televisions in the backgrounds of their shots.

The second category, non-consumptive uses, "do not directly trade on the underlying creative and expressive purpose of the work being used." In other words, a non-consumptive use might take the complete text of the novel, make a copy of it, but use it only as the input for a lexicographical analysis of style, not to produce a free e-book.

"Because they do not trade on the expressive or aesthetic aspects of copyrighted works," says the report, "they pose little threat to the core market interests of copyright holders that copyright endeavors to protect."

Copyright owners do worry even about such innocuous-sounding issues, however, because of things like the Google Book Search settlement, where the issue of non-consumptive use has already arisen. Researchers would love access to such a massive archive of textual material, but rightsholders worry about what might happen if Google's data sets are released too widely. Would the text of millions of copyrighted books, released to researchers in their entirety, open the way for widespread piracy of the last century's copyrighted works in one giant download?

But it is the third proposal that might prove most controversial. "Personal and noncommercial uses" are said to "have little chance of harming copyright holders. At the same time, they are ubiquitous: every day we timeshift television shows via TiVo, create mix CDs for the car and iPod playlists to the gym, backup up our computer hard drives, and read books to her children before bed."

But at what point is a use truly "noncommercial"? This issue has been raised in both of the ongoing infringement cases against Jammie Thomas-Rasset and Joel Tenenbaum, the first two people to take RIAA-backed P2P infringement cases to trial. In both cases, the labels have insisted (repeatedly) that no easy distinctions can be drawn between commercial and non-commercial activity; though sharing copyrighted files with others may be "non-commercial" in the sense that no one is charging money for access, it also seems to be quite clearly "commercial" in the sense that a major purpose is to avoid paying for music that could easily be obtained from stores like iTunes.

Even the backers of the Copyright Perform Act, sympathetic as they are to fair use and an expansive reading of consumer rights under copyright law, do draw the line here. While they want to ensure that deference is given to things like time-shifting, the report notes that simply placing "personal and non-commercial" in the preamble to fair use law isn't the end of the story. The four factors still apply, and any non-commercial personal use that "sufficiently harms the copyright holder's market would not be fair."

Instead, personal and noncommercial copying would gain the presumption of legality—but if copyright holders could show "either actual market harm or a likelihood of market harm," those uses would not be allowed. As Pam Samuelson notes, "ordinary personal uses, such as backup copying and platform-shifting, would be fair, but P2P file sharing would not be."

A government controlled by corporate interests will not undermine their ability to protect said interests. By handling copyrighted material in any form you are as best a market risk and at worst a hostile competetive force. A responsible corporate entity must persue all legal avenues to minimize risk and recoup losses. Laws and agencies like this one are the methods they use.

Why not simple append it to "non-disseminative personal, non-commercial use"?That covers personal use as being acceptable, but p2p sharing or copying a CD and giving the copy to friends, or sharing your CDs by ripping and sending the mp3s to your friends is clearly dissemination, but ripping your CD to mp3 to play yourself is clearly only personal since you are not then giving the content away.

Obviously the dissemination element would be clearly related to personal freedoms, and not apply to incidental etc use.

Format-shifting is harming content-owners' abilities to sell us the same content over again in different formats. (Buy an LP, then buy the same music on CD 10 years later, then buy it again from iTunes...) I'm sure their lawyers have been rehearsing arguments against format-shifting for years and wouldn't have any difficulty citing market harm to block it.

Obviously format-shifting content when you have bought the rights to enjoy it in perpetuity needs to be made legal. But what about rentals? Do you have the right to format-shift a rented DVD so you can view it on your iPod? Do you have the right to format-shift your cable subscription so you can view it over the internet?

Instead, personal and noncommercial copying would gain the presumption of legality—but if copyright holders could show "either actual market harm or a likelihood of market harm," those uses would not be allowed. As Pam Samuelson notes, "ordinary personal uses, such as backup copying and platform-shifting, would be fair, but P2P file sharing would not be."

And as many debates here have pointed out that's the crux of the "noncommercial infringement" issue. If someone is "commercially" infringing with the intent to avoid paying, and/or helping others to avoid paying (uploading) does that harm the market?

Instead, personal and noncommercial copying would gain the presumption of legality—but if copyright holders could show "either actual market harm or a likelihood of market harm," those uses would not be allowed. As Pam Samuelson notes, "ordinary personal uses, such as backup copying and platform-shifting, would be fair, but P2P file sharing would not be."

This paragraph seems to be contradicting itself -- as Game_Ender notes. I'm sure it would be easy for the copyright holders to show likelihood of market harm when platform-shifting, or backing up a Blu-Ray disc, since if the user was not allowed to do this they might have bought the movie in another format or in the case of their Blu-Ray disc breaking, a new copy of the movie on disc.

I'm all for this btw, I like to store my content on a media server and let it be access from anywhere in my home rather than having to look for the disc and loading it into a player.

Instead, personal and noncommercial copying would gain the presumption of legality—but if copyright holders could show "either actual market harm or a likelihood of market harm," those uses would not be allowed. As Pam Samuelson notes, "ordinary personal uses, such as backup copying and platform-shifting, would be fair, but P2P file sharing would not be."

This paragraph seems to be contradicting itself -- as Game_Ender notes. I'm sure it would be easy for the copyright holders to show likelihood of market harm when platform-shifting, or backing up a Blu-Ray disc, since if the user was not allowed to do this they might have bought the movie in another format or in the case of their Blu-Ray disc breaking, a new copy of the movie on disc.

I'm all for this btw, I like to store my content on a media server and let it be access from anywhere in my home rather than having to look for the disc and loading it into a player.

Exactly. "Market harm" shouldn't be the barometer here, because pretty much anything could be shown to harm the market in some way. That, and we shouldn't enshrine a business model into law.

Originally posted by charleski:But what about rentals? Do you have the right to format-shift a rented DVD so you can view it on your iPod? Do you have the right to format-shift your cable subscription so you can view it over the internet?

I'm going to say that yes, it should be legal. Granted, if your rent something for a week, then you shouldn't keep it in any format for longer than that.

Originally posted by skicow:I'm all for this btw, I like to store my content on a media server and let it be access from anywhere in my home rather than having to look for the disc and loading it into a player.

Ditto. The wife and I have hundreds of DVDs that we never need to touch now because our media server is so effective.

Originally posted by skicow:I'm all for this btw, I like to store my content on a media server and let it be access from anywhere in my home rather than having to look for the disc and loading it into a player.

Ditto. The wife and I have hundreds of DVDs that we never need to touch now because our media server is so effective.

Originally posted by Game_Ender:Yet a lawyer could argue that platform shifting significantly hurts there market in selling you the same content on every platform.

Also, a lawyer could argue that P2P filesharing is less harmful than platform shifting because filesharing has a non-consumptive "try before you buy" purpose, potentially resulting in new sales. On the other hand, people who rip CDs do it only because they don't want to pay for MP3 files - they already know that they like the music.

Originally posted by skicow:I'm all for this btw, I like to store my content on a media server and let it be access from anywhere in my home rather than having to look for the disc and loading it into a player.

Ditto. The wife and I have hundreds of DVDs that we never need to touch now because our media server is so effective.

Sell them.

You know, I've thought about this over the years, and I can't really justify selling my physical copies. Because if I sell my physical copy, then it's no longer possible to claim any sort of legal ground to stand on. After all, how is this any different from renting a disk from netflix, ripping it, and then sending it back?

Buying a movie, ripping it, then putting the physical copy in a personal archive somewhere is fair use format shifting, in my mind. Renting a movie and doing the same is not. This is all, of course, predicated on the idea that you only purchase a license to the content, rather than the content itself. With movies and music, I have no real problem with this concept. It's not like I can go and modify a verse or a scene in any real fashion; reorder, cut, edit, yes -- fundamentally change, no.

Originally posted by hobgoblin:only if one find installing itunes acceptable (or its even possible), and that the supplied format is one that one is interested in, or able to make use of.

I always find it odd that people would justify pirating music or software with some sort of excuse about the format etc. If you don't like how something is packaged or offered for sale, the reasonable thing to do is not to buy that thing. It's not to go out and obtain an illegal copy.

Originally posted by Lonyo:Why not simple append it to "non-disseminative personal, non-commercial use"?That covers personal use as being acceptable, but p2p sharing or copying a CD and giving the copy to friends, or sharing your CDs by ripping and sending the mp3s to your friends is clearly dissemination, but ripping your CD to mp3 to play yourself is clearly only personal since you are not then giving the content away.

Obviously the dissemination element would be clearly related to personal freedoms, and not apply to incidental etc use.

Take away my legal right to "share" copies of works I own with others I know, and suddenly loaning a friend a copy of a D&D book to build a character could become illegal, and he'd have to buy his own. Loaning a friend a copy of a CD, a book, etc is currently protected as far I I was aware, you propose to limit that. Also, resale of a work (tag sale, used game store, etc) would be illegal.

NO! Dissemination of the work MUST be approved, provided that it is dissemination of the original copy while not maintaining derivative copies, and somehow this must include electronic-only works.

I buy electronic works. When i "loan" that work to a friend, I have to assume he won't make illegal copies of it, and during the time of the loan, I have to assume I won't use my own copies I may have legally made for personal use. Until there is a portable DRM system that can live track who is in possession of a particular purchased copy of a work, and a system that can guarantee that only 1 active copy is in circulation is active at a time (plus the personal use copies used by family members authenticated under the same master account, since clearly I'm able to share copies with all the members of my family under my roof and those in school listed as dependents), we simply have to be on the honor system.

Originally posted by MilleniX:Why are people arguing over the commerciality of file sharing? It's clearly not a personal use when it involves distributing copies of whatever work to other people.

Phil

The argument isn't about the distribution. People want to argue that if they download, it's personal and non-commercial. The argument says that people who upload and distribute are in the wrong, but people who download are OK.

Take away my legal right to "share" copies of works I own with others I know, and suddenly loaning a friend a copy of a D&D book to build a character could become illegal, and he'd have to buy his own. Loaning a friend a copy of a CD, a book, etc is currently protected as far I I was aware, you propose to limit that. Also, resale of a work (tag sale, used game store, etc) would be illegal.

But there's an open question at stake: Without some form of DRM, is it possible to "loan" somebody an electronic file? I don't think so. When I loan somebody a book, I temporarily lose my copy of the book. I can't read the book while my friend has it. That's not true of electronic files.

I can see how I could loan somebody a CD, or I can give somebody a copy of the CD. But for electronic files, unless the user deletes the file (which, honestly, nobody would do) the file isn't loaned. A copy is given.

Originally posted by skicow:I'm all for this btw, I like to store my content on a media server and let it be access from anywhere in my home rather than having to look for the disc and loading it into a player.

Ditto. The wife and I have hundreds of DVDs that we never need to touch now because our media server is so effective.

Sell them.

And thus become a thief? They can claim to own a permanent, non-exclusive, license to private viewings of the media as a result of their purchases. However, when they sell the DVDs, they would be selling the license. At that point, they would have no license to engage in private viewings of the media on their servers.

People that say "Sell Them" are feeding the DRM monster. All they do is further show content producers that the "archival purposes" argument for making copies of media is a sham - that as soon as the media is ripped or duplicated, the original will be passed along.

But at what point is a use truly "noncommercial"? This issue has been raised in both of the ongoing infringement cases against Jammie Thomas-Rasset and Joel Tenenbaum, the first two people to take RIAA-backed P2P infringement cases to trial. In both cases, the labels have insisted (repeatedly) that no easy distinctions can be drawn between commercial and non-commercial activity; though sharing copyrighted files with others may be "non-commercial" in the sense that no one is charging money for access, it also seems to be quite clearly "commercial" in the sense that a major purpose is to avoid paying for music that could easily be obtained from stores like iTunes.

The same argument could be made (although it would certainly fail) with respect to books, magazines, and newspapers--all of which may be freely passed around to friends and associates without fear of copyright infringement. I think the key here would be "anonymous distribution" in terms of declaring that the sharing of an original copy of copyrighted material with friends and associates would be protected under non-commercial Fair Use, whereas sharing it by way of copying it to a P2P network would not be protected in the same way. In terms of individual use, I don't think there should be a restriction on the number of copies one may make for himself, provided such copies are never sold and distributed outside of immediate family. Pretty much, I think this is the way things already are. I think, however, that the copyright holders need to be made to prove damages against a defendant, and that statutory damages applied in situations where the plaintiff cannot prove distribution should be thrown out. IE, if plaintiff cannot prove distribution he cannot prove damages.

Originally posted by nbs2:And thus become a thief? They can claim to own a permanent, non-exclusive, license to private viewings of the media as a result of their purchases. However, when they sell the DVDs, they would be selling the license. At that point, they would have no license to engage in private viewings of the media on their servers.

Does this "license" even exist? I realize that an idiot like you doesn't need a reason to call someone a "thief", but the whole point of copyright is that "licenses" are explicit, not implicit.

when i download "Community" (Chevy Chase is back, baby) off the internet because my freakin DVR died and the episodes that WERE on there are no longer, i simply download them off the internet to watch them.

now - i've never been able to understand what the difference is between when i DVR a TV show and when i get a TV show with TVShow.app. Both methods result in my viewing the show Community with no commercials since i just zap past them on my DVR.

Originally posted by MilleniX:Why are people arguing over the commerciality of file sharing? It's clearly not a personal use when it involves distributing copies of whatever work to other people.

Phil

So long as "loaning" copies to friends and family, with the full expectation the loan is not permanent, and the friend make no copy of his own from the derivative copy, I'm completely fine with your statement. A system of controlled copy where copies can not be re-coped (and preferably even contain watermarks identifying who made the copy), would be perfectly acceptable to me.

Originally posted by hobgoblin:only if one find installing itunes acceptable (or its even possible), and that the supplied format is one that one is interested in, or able to make use of.

I always find it odd that people would justify pirating music or software with some sort of excuse about the format etc. If you don't like how something is packaged or offered for sale, the reasonable thing to do is not to buy that thing. It's not to go out and obtain an illegal copy.

I always find it odd that people would justify charging people for the same content based solely upon the format of storage. It is the exact same content, and that content has been paid for. Expecting anything more is pure greed.

As for not liking how it is packaged. I guess that I must have missed where that digital copy of Metallica's And Justice for All was sold when I purchased the CD in 1988.

What you are saying is that it is somehow immoral for me to take the content that I paid for in 1988 and now shift it to a digital copy that I can put on my iPod. You think that it is immoral for me to take the EXACT same music and place it into a different digital version which is now compatible with a device that didn't even exist when I first purchased the music.

No sir, that is not immoral, and it should not be illegal. What is immoral is thinking that the consumer should have to pay more than once for the exact same content based solely upon the algorithm used to store the content. That is immoral and should be illegal.

I can easily say I wholeheartedly support an addition like this to the Copyright Act's fair use provisions. Some of the things that we do on a daily basis (platform shifting, backing up, etc.) have existed in a legal gray area for far too long. We all know that these uses should be considered proper fair use, but no court or legislature has ever flat out said as much (on the contrary, the DMCA actually says these uses are impermissible forms of circumvention). Now, if only Congress would do their part and adopt this provision, we might actually be able to return some of the balance to copyright law.

To the issue of personal, non-commercial uses, I think we need to read it plainly, with the understanding that some distinctions need to be drawn depending on the use. If you're not making money from your use, it's clearly non-commercial in the strictest sense of the word. Platform shifting and back-ups would obviously fall into that category. P2P use would also appear to fall into that category but for the fact that, while you certainly aren't making any money by downloading, the market is definitely losing money due to those distributing.

I don't think we can argue that there aren't some lost sales due to P2P use. There are some people who simply like to sample (and will legitimately purchase their music after the fact) and there are others who just want stuff for free. Distinguishing between the two is exceedingly difficult and is primarily why I support the idea of P2P use not being counted amongst the personal, non-commercial uses.

All that to say, if this can make its way into a bill, I'd be behind it 100%.

Originally posted by skicow:I'm all for this btw, I like to store my content on a media server and let it be access from anywhere in my home rather than having to look for the disc and loading it into a player.

Ditto. The wife and I have hundreds of DVDs that we never need to touch now because our media server is so effective.

Sell them.

And thus become a thief? They can claim to own a permanent, non-exclusive, license to private viewings of the media as a result of their purchases. However, when they sell the DVDs, they would be selling the license. At that point, they would have no license to engage in private viewings of the media on their servers.

Why not? he originally gave his money to the rights holders. The money for that "license" is in the hands of the people who hold the copyright.

Any further use of the media is his decision (no longer a concern for the rights holders), if he wants to sell the DVDs as beer coasters he can (First Sale Doctrine).

What would happen if somebody would brake into his house and stole his DVD collection? Are you suggesting he do the "honorable" thing and delete his rips?